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A history of Senate appointments

By Bob Katzen

Updated:
12/03/2012 09:34:05 AM EST

THE HOUSE AND SENATE. There were no roll calls in the House or Senate last week.

Gov. Deval Patrick and Phil Johnston, former chairman of the Massachusetts Democratic Party, have both said they are in favor of changing, for the third time in just nine years, the law that dictates the procedure for filling the U.S. Senate seat of Sen. John Kerry. Kerry is being considered by Obama as the next secretary of state or defense.

Current law leaves the seat temporarily vacant and provides for a special election to be held within 145 to 160 days.

Here's the rocky history:

Before 2004, the law provided that when a U.S. Senate seat becomes vacant, the governor had sole power to name a replacement until the next regular election.

That worked well for Democrats in 1961, when Democratic Gov. Foster Furcolo, appointed Benjamin Smith, a close Kennedy family ally, to "keep the seat warm" until the election in 1962, at which time the president's then 29-year-old brother Ted would be 30, the minimum age required to be elected to the Senate. The plan worked and Ted Kennedy won the 1962 election.

Fast-forward to the summer of 2004, when Republican Mitt Romney was governor. Democrats feared Romney would have the opportunity to appoint a Republican to fill Sen. John Kerry's seat until 2008 if Kerry won the 2004 November presidential election. So the Democratic-controlled Legislature approved a new law taking away the governor's appointment power and instead leaving the seat temporarily vacant and providing for a special election for the seat to be held within 145 to 160 days.

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Romney vetoed the law but the Legislature overrode his veto.

But Kerry lost to former President George W. Bush and the Senate seat never became vacant.

The 2004 law remained on the books until 2009 when shortly before his death, Kennedy urged state lawmakers to approve a proposal that would amend the 2004 statute when he died and his seat became vacant.

The Legislature granted Kennedy's wish and approved the measure that gave Patrick what it had taken away from Romney in 2004 -- the power to appoint a short-term replacement until the winner of a special election is sworn into office.

Everyone on Beacon Hill knew Democrats were changing the law because they knew Patrick would appoint a Democrat to the seat, and thus maintain the Democrats' important 60-vote super-majority in the U.S. Senate. This would give Democrats the power to put a stop to any filibuster and other delay tactics from Republicans.

Half of the plan worked. Patrick appointed former Kennedy aide Paul Kirk to the Senate. But Republican Scott Brown pulled an upset and beat Attorney General Martha Coakley to become U.S. senator.

Now there is talk about changing the law back to the one that allowed the governor to appoint a replacement to serve until the next regular election.

House Republican Minority Leader Bradley Jones opposes the change.

"Any such move to change this law at this point in the game could accurately be seen as corrupt," Jones said. "To imagine that Gov. Patrick and state Democrats would change the law midterm, thus denying Massachusetts voters from being able to exercise their constitutional right to vote, is unfathomable."

"To suggest that we should take away the right to vote for a new United States senator to save money or to alleviate alleged 'voter fatigue' is offensive to the very essence of our democracy. ... It is wrong for Beacon Hill to try to perpetuate the shell game of changing the rules every few years."

Perhaps the harshest criticism came from State Republican Party spokesman Tim Buckley.

"While changing the law for a fourth time to suit the needs of the Democrats would be a blatant manipulation of state law for political gain, it is not wise to put anything past the Democrats," Buckley said. "After all, they are the party responsible for 23 years of criminal House speakers so anything is possible."

Seth Gitell, spokesman for House Speaker Robert DeLeo, told Beacon Hill Roll Call: "It is not on the radar (screen) at this time."

Senate President Therese Murray's spokesman, David Falcone, said in an e-mail: "We're not changing it."

State Sen. Barry Finegold, an Andover Democrat and chairman of the Election Laws Committee that would hold a hearing on any such bill, also made clear that he favors the existing law.

Here's a review of how local senators and representatives voted on the 2004 and 2009 laws:

* 2004 VOTE ON TAKING AWAY GOV. ROMNEY'S POWER TO APPOINT A SENATOR (S 2404). The House (122-30) and Senate (31-7) approved the 2004 law that took away the power of Gov. Romney to appoint a temporary replacement when a U.S. Senate seat becomes vacant in Massachusetts. The measure instead leaves the seat temporarily vacant and requires that a special election be held within 145 and 160 days.

(A "Yes" vote is for the bill taking away the governor's power and calling for a special election. A "No" vote is against it.)

* 2009 VOTE ON CURRENT LAW THAT ALLOWS GOV. PATRICK TO APPOINT A SENATOR (H 4246). The House (95-59) and Senate (24-16) approved and Patrick signed into law the bill that returns to the governor the power to appoint a temporary replacement for the late Sen. Edward Kennedy until the winner of a special election is sworn into office.

(A "Yes" vote is for the bill that would give Patrick the power to appoint a temporary replacement for Kennedy. A "No" vote is against giving the governor the power.)

HOUSE

YES: Atkins, Benson, Garry, Golden and C. Murphy.

NO: Arciero, Miceli, K. Murphy and Nangle.

WAS NOT YET ELECTED: Adams, Harrington, Lombardo.

SENATE

YES: Donnelly, Eldridge, Fargo and Finegold.

NO: Flanagan and Tarr.

WAS NOT YET ELECTED: Donoghue.

HOW LONG WAS LAST WEEK'S SESSION? During the week of Nov. 26-30, the House met for a total of one hour and 48 minutes while the Senate met for a total of 42 minutes.

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